Alameddine v Minister for Immigration
[2010] FMCA 313
•23 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALAMEDDINE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 313 |
| MIGRATION – Review of MRT decision – applicant held a temporary spouse visa when relationship ended and claimed to be a victim of domestic violence – where Tribunal notified applicant of independent expert’s opinion that he had not suffered domestic violence and sought comment – where Tribunal did not refer further submissions of the applicant to the expert to reconsider opinion – legitimate expectation – whether actions of expert and Tribunal in inviting comment created an obligation on the Tribunal to refer the submissions to the expert before accepting decision as “properly made” – opinion vitiated by error of law – whether applicant had been afforded opportunity to make the submissions prior to receiving the expert’s opinion. |
| Migration Act 1958 (Cth), ss.422B, 424A Migration Regulations 1994 (Cth) |
| SZEUI & Ors v Minister for Immigration & Anor [2007] FMCA 2134 Minister for Immigration v Seligman (1999) 85 FCR 115 Silva v Minister for Immigration [2007] FMCA 1955 SZEYK v Minister for Immigration [2008] FCA 1940 Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 SZBEL v Minister for Immigration (2006) 231 ALR 592 |
| Applicant: | MUSTAPHA ALAMEDDINE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3024 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 May 2010 |
| Date of Last Submission: | 3 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3024 of 2009
| MUSTAPHA ALAMEDDINE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Migration Regulations 1994 (Cth) (the “Regulations”) provides in Schedule 1 for a category of visa known as the partner (Temporary) (Class UK) visa. There are two subclasses, class 820 (spouse) and 826 (interdependency). The partner (Temporary) (Class UK) visa is given to an applicant who meets, at the time of application, one of the alternate requirements contained in the subclauses listed in clause 820.211(1) of Schedule 2 to the Regulations. An applicant who was granted a temporary visa may after the prescribed period of time apply for a full visa giving them the benefit of permanent residence within this country. If during the currency of the temporary visa the partner of the applicant withdraws their sponsorship, the Minister may cancel the visa. There is an exception to this procedure where the applicant, whose sponsorship has been withdrawn or who has otherwise separated from their partner, has been the victim of domestic violence.
In the Regulations there is set out in reg. 1.21 et seq a comprehensive code for the assessment of whether or not a person is taken to have suffered or committed domestic violence. The definition can be satisfied by the establishment of a judicially determined claim of domestic violence or a non-judicially determined claim. We are concerned in the instant case with the latter. Where the claim of domestic violence has not been judicially determined, the manner in which the decision maker is required to decide whether the alleged victim has suffered domestic violence is set out in reg. 1.23. Domestic violence is defined as a reference to:
“violence against the alleged victim or his or her property that causes the alleged victim, or member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.”
The complex provisions of the legislation allow for a decision maker to be satisfied that an applicant has suffered relevant domestic violence but, where the decision maker cannot be so satisfied, provides for a process by which the claim is referred to an independent expert whose opinion on the matter is to be taken to be correct. These provisions are found in reg. 1.23(1B) and (1C):
“(1B) If an application for a visa includes a non-judicially determined claim of domestic violence, the Minister must consider whether the alleged victim has suffered relevant domestic violence (whichever of the circumstances mentioned in paragraph (1A)(b) exists) and :
(a) If satisfied that the alleged victim has suffered relevant domestic violence – consider the application on that basis; or
(b) If not satisfied that the alleged victim has suffered relevant domestic violence – seek the opinion of an independent expert about whether the alleged victim has suffered relevant domestic violence.
(1C) The Minister must take an independent expert’s opinion on the matter mentioned in paragraph (1B)(b) to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered domestic violence.”
Mr Alameddine applied to the Department of Immigration & Citizenship for a Partner (Temporary) (Class UK) visa on 23 January 2006. His sponsor was Ms Mona Alameddine who he claimed that he had met in Sydney on 20 September 2004 and to whom he was married in Sydney on 21 November 2005. From December 2005 Mr and Mrs Alameddine lived at the rear of Mrs Alameddine’s family home in Miranda which was also occupied by her parents, two of her brothers and her sister. After about six months the couple moved to a flat in Auburn which was owned by Mrs Alameddine’s paternal aunt. Mrs Alameddine was reluctant to make the move as she preferred to remain in her parent’s home but she reluctantly agreed. The move occurred in July 2006. According to the statement given by Mr Alameddine to a social worker from Centrelink [CB 260]:
“Mr Alameddine confirmed that they moved to Auburn in July 2006 and rented informally, paying $120 per week. Mona ceased work and Mr Alameddine advised that, while he was unsure whether Mona received income from Centrelink, he asked her to notify Centrelink of their marriage. As she was no longer working, it appears that Mona then had no income, and was living away from her family and the area of Sydney. Mr Alameddine described Mona as becoming very unhappy with him. He stated that she complained to her family that he was not providing for her. Mr Alameddine felt that Mona neglected him and her household duties and their marital problems and arguments quickly escalated.
Mr Alameddine stated that he wanted to have children, but Mona was not ready to have children and used contraception, to his knowledge. He advised that Mona became very angry with him, and verbally abused him, when she thought that she was pregnant. Mr Alameddine initially advised that they went to see Dr Mikhail, but when queried about this, advised that they saw a Chinese doctor together.
Throughout the period from July 2006 until February 2007, Mr Alameddine advised that he and Mona argued and quarrelled and he felt depressed and stressed. He initially advised that Dr Mikhail had diagnosed him with high blood pressure, but when questioned about this, advised that the only time he visited a doctor during their relationship, was during the pregnancy scare. He advised that he had not seen a doctor, despite being injured by his wife pushing him on two occasions. He advised that he stopped asking her to make food for him, and stopped asking her about her outings, after they argued about these things, so as to avoid further conflict.
In February 2007, Mr Alameddine confirmed that he was told to leave the marital home by Mona, as she said that she no longer wanted him. Mr Alameddine responded by trying to discuss the situation, but she did not want to talk and forced him to leave the marital home, saying that she could ask her brothers to remove him forcibly if he refused to leave of his own accord.”
On 5 February 2007 Mrs Alameddine advised the Department that her relationship with Mr Alameddine was no longer continuing and the withdrawal of sponsorship was acknowledged by the Department on 9 March 2007 [CB 123]. On the same day the Department wrote to Mr Alameddine advising him of the withdrawal of sponsorship and providing him with the opportunity to provide a response explaining the current circumstances and the reason for the break down of the relationship [CB 124]. On 3 April 2007, through his migration agent, Mr Alameddine claimed that he was a victim of domestic violence inflicted upon him by his wife Mona, providing the required statutory declarations from competent persons and from Mr Alameddine himself. Mr Alameddine’s claims were referred by the Department case officer to a Centrelink senior social worker for independent assessment in accordance with the Regulations and he attended an interview with that independent expert in which a number of questions were asked and responded to. The assessment referral form and opinion is found at [CB 181-189]. The delegate determined not to grant either of the two separate visas applied for as the independent expert’s opinion was that there was insufficient evidence to suggest that Mr Alameddine was a victim of domestic violence and was fearful or apprehensive of his physical safety and well-being. On 8 December 2008 Mr Alameddine applied for review of that decision from the Migration Review Tribunal. At [53] [CB 293] the Tribunal noted:
“Having considered all of the evidence before it, including the evidence of a non-judicially determined claim of domestic violence before the Tribunal, the Tribunal was not satisfied that the alleged victim has suffered relevant domestic violence. The Tribunal finds, therefore, that r.1.23(1)(f) is not met. In accordance with r.1.23(1B)(b), on 3 June 2009 the Tribunal sought the opinion of an Independent Expert about whether the alleged victim has suffered relevant domestic violence. On 20 August 2009 the independent expert provided an opinion that the alleged victim had not suffered relevant domestic violence. The author of the opinion holds a Bachelor’s Degree in Social Work and is employed by Centrelink as a social worker.”
The form of the independent expert’s report and opinion followed that of the independent expert utilised by the Department in that a number of headings relevant to the requirement of the Regulations are used and then the responses received from the applicant are set out. It is submitted by the Minister that I can infer from the way in which these reports are produced that the interview is a question and answer session and that the matters contained in italics in the report constitute the basis of the questioning of an applicant. The only matter relevant for the purposes of this case is a topic headed Provision of support services. The italicised questions put by the delegate’s expert are found at [CB 186]:
“Describe professional assistance obtained, if any, by the alleged victim. Examples include domestic violence counselling (eg refuge, social worker other than in the course of this assessment), or judicial or police action. State whether you have sighted evidence of claimed domestic violence assistance (eg appointment slips, correspondence). If the alleged victim has not sought such assistance, give their reasons why not.
B15:
Mustapha claims that subsequent to his wife assault, which resulted in aggravating a previous back injury, he attended the family doctor (Dr Michael’s) for treatment. In addition, Mustapha claims that Dr Michael’s has treated him in relation to depression and high blood pressure caused by the incidents of violence.
It is identified in both the competent person’s statutory declarations that Mustapha reported that he is being treated by his General Practitioner (Dr Michael’s) for high blood pressure and depression, however neither competent person confirmed the matter with Dr Michael’s.
During the interview I advised Mustapha that supporting documentation from Dr Michael’s would be relevant to the assessment, as he is in a good position to comment on his situation and is able to confirm the treatment of his depression and high blood pressure. Mustapha indicated during the interview that he would not be pursuing such supporting documentation.
Apart from the identified competent persons and his general practitioner he did not identify any other professional supports.”
The Tribunal’s independent expert appears to have dealt with the matter in a similar way at [CB 263]:
“Provision of support services
Describe professional assistance obtained, if any, by the alleged victim. Examples include domestic violence counselling (eg refuge, social worker other than in the course of this assessment), or a judicial or police action. State whether you have sighted evidence of claimed domestic violence assistance (eg appointment slips, correspondence). If the alleged victim has not sought such assistance, give their reasons why not.
16: The applicant initially stated that he talked to his doctor about the alleged domestic violence from Mona, during the relationship. However, he admitted during our interview that he did not consult or seek professional interventions, until after the end of the relationship. When he was asked why he did not request assistance, he stated that he did not want to cause problems and he was hoping that they could improve their relationship.”
In the Tribunal’s expert’s opinion he deals with this matter at [CB 265]:
“It is my assessment that there is no clear evidence that can be independently substantiated that the applicant, Mr Mustapha Alameddine, suffered relevant domestic violence perpetrated against him by Ms Mona Alameddine, which caused Mr Mustapha Alameddine to fear for his safety or well being.
The applicant’s failure to seek police an/or professional interventions following the alleged assaults in August (hit) and December (pushed over) 2006, and the alleged threat in October 2006 and until after he was put out of the marital home in February 2007, does not indicate a genuine experience of fear. The repeated attempts to reconcile with his wife and to return to the marital home, is not consistent with what would be reasonably expected from a person who had genuinely experienced fear as a result of domestic violence.”
It is not suggested by the applicant that he was not asked questions concerning his reporting of the matter to or seeking assistance from the police or other organisations dealing with family violence and I am prepared to infer from the manner in which this important aspect of the report is set out by both independent experts that it was dealt with in a question and answer style discussion. The Tribunal’s independent expert concluded that:
“it was not established on the evidence presented that the applicant held ongoing fears for his safety or well-being as a result of being subjected to domestic violence from Mona Alameddine.”
Upon receiving this report, the Tribunal wrote to the applicant on 14 September 2009 inviting him to comment on or respond to information that the Tribunal considered would, subject to those comments or response, be the reason or part of the reason for affirming the decision under review. The letter attached the report from the independent expert and stated:
“Your spouse relationship with your sponsoring spouse has ceased and you have claimed that you were a victim of domestic or family violence by your sponsoring spouse.
On 3 June 2009 the Tribunal sought the opinion of an independent expert about whether the alleged victim (you) has suffered relevant domestic/family violence. On 11 September 2009 the independent expert from Centrelink provided an opinion that, following assessment of your family violence claim, you are not a victim of domestic/family violence.
In accordance with r.1.23(1C) the Tribunal is required to take as correct an independent expert’s opinion, properly made, about whether the alleged victim (you) suffered relevant domestic/family violence.” [CB 272]
On 8 October 2009 the applicant’s advisor wrote to the Tribunal in response to the letter stating relevantly:
“It seems that the independent expert opinion, CENTRELINK social worker, is based on the fact that our client had not sought the intervention of the police or professionals as she mentions on page 11, parag.5.
But the evidence available, as we pointed out, is that he sought professional help from his doctor on 28/2/2007 and was under treatment for a long time.
As for seeking police intervention, the expert did not take into consideration the cultural back ground of the applicant. In general people from the Middle East, Arabs and Muslims in particular, pass through the process of socialisation and acquire their value system that prevents them from seeking police intervention against their wives. That would reflect badly on their self esteem and self image.
By (sic) not seeking police intervention does not and should not become the indicator whether someone was subjected to family violence. The regulation talks about whether a person has experienced family violence actual or threats. It does not mention that one should seek police intervention. There are thousands of family violence cases in Australia and the developed countries that are never reported to police and never go to court. People try to cope and if it becomes beyond their ability they seek medical help.
It seems that the independent expert has overlooked our client’s cultural background or has not given it the weight it deserves.
We would appreciate if you could refer him to a new independent expert as our clients case is genuine.
Yours Faithfully,
A.T.I.S.
Mahmoud Ajjawi” [CB 275]
The Tribunal determined not to refer the letter to the independent expert for further consideration and stated in its findings and reasons:
“The Tribunal has decided not to seek a further (third) Opinion on this occasion. The Tribunal was not satisfied that the first Opinion was ‘properly made’ in the sense that vital information pertinent to the applicant was not available to the first Independent Expert as part of the first Opinion. Whilst aware of the applicant’s adviser’s comments on the second Opinion, the Tribunal is satisfied that the most recent Opinion was ‘properly made’ for the purposes of this review. Under r.1.23(1C) the Tribunal is required to take as correct an Independent Expert’s opinion, properly made, about whether the alleged victim suffered relevant domestic violence.
Accordingly, under r.1.23(1)(g) the Tribunal finds that the alleged victim (the applicant) is not taken to have suffered domestic violence and the alleged perpetrator (the sponsoring spouse) is not taken to have committed domestic violence. As none of the alternatives in r.1.23(1) is satisfied, the Tribunal finds that the applicant is not taken to have suffered domestic violence and, therefore, has not suffered domestic violence in the relevant sense: r.1.22.” [CB 294]
On 11 December 2009 the applicant sought review of the Tribunal’s decision from this Court. The ground of that application was:
“The second respondent relied on an opinion of an independent expert made on 20 August 2009 which was affected by error of law”
When the matter was argued before the Court, the applicant, through his counsel, articulated the issue as:
“whether, in relation to a claim for a spouse visa under the domestic violence provisions in division 1.5 of the Migration Regulations 1994, the second respondent (the Tribunal) erred by relying on an assessment by an independent expert “in circumstances where the Tribunal failed to provide the expert with all the particulars of the applicant’s claims.”
The particular of the applicant’s claim which the Tribunal is alleged not to have provided to the independent expert was the claim that the applicant’s failure to seek intervention from the police or professionals was not related to the quality of the violence asserted but to his cultural background.
In his helpful written submissions, the applicant argues:
“Where there has been a claim of domestic violence under Division 1.5 of the regulations and the Tribunal forms a view that an applicant has not suffered domestic violence and seeks the opinion of an independent expert, the independent expert is required to apply the correct test for “relevant domestic violence” and to address the correct issues. If the expert fails to do so the opinion will not be an opinion within the meaning of the regulations, and any reliance upon it by the Tribunal will amount to jurisdictional error: see, e.g., Silva v Minister for Immigration [2007] FMCA 1955, citing Minister for Immigration v Seligman (1999) 85 FCR 115.
Relevantly to the present application, if the expert fails to consider the case put by an applicant it will not be an opinion upon which the Tribunal can rely: Silva at [31].”
In response, the Minister argues broadly that, whilst the failure of an independent expert to consider a claim might constitute a jurisdictional error, the claim in this case was that the applicant suffered domestic violence and that claim was considered. What might not have been considered was the information concerning the applicant’s cultural circumstances which might go to the proper assessment of the claim. If a jurisdictional error is to occur in regard to a piece of evidence then it is proper first to ask whether the applicant had an opportunity to provide the information which was clearly an issue in the application. The respondent argues that the applicant had clear opportunities to provide the information when he was asked questions concerning his reasons for not approaching the police or other authorities by the two experts and when he was asked by the Tribunal at [CB 238] in its letter to provide information including:
“any other information which you believe is pertinent to your case”
The respondent argues that, once the Tribunal had received a report which complied with the statutory requirements, it had no alternative but to accept it and to affirm the decision under review.
The first issue is whether the Tribunal, having received the report, was required to adopt the finding without referring the information to the expert in circumstances where the expert had invited the Tribunal to provide her with any relevant new evidence and the Tribunal had provided the applicant with the report and requested comment upon it. At [CB 265] the following statement is found at the end of the independent expert’s opinion:
“This opinion is based upon the evidence available at the time of assessment. If relevant new evidence is submitted before the application is finally determined, this opinion can be reconsidered…”
The Tribunal proceeded to request that the applicant give comment or respond to the information provided in its s.424A letter dated 14 September 2009. The particulars of the information were reproduced above at [10]. A copy of the expert’s report was attached. The applicant responded through his migration agent by letter dated 8 October 2009 and included the information in relation to his cultural background in explanation of his failure to seek police intervention.
Although the applicant could not point to any statutory obligation to do so, the Court considered whether the expert’s statement that, upon receipt of new information the opinion could be reconsidered, combined with the Tribunal’s action in inviting comment on the opinion, could give rise to a legitimate expectation that the Tribunal would pass on the information. I considered this ground of review in SZEUI & Ors v Minister for Immigration & Anor [2007] FMCA 2134 at [11]:
“[T]here must be some doubt now as to the extent of any legitimate expectation doctrine following the views expressed by the High Court in Re Minister for Immigration; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 and the views of Gummow J concerning estoppel in administrative law found in Minister for Immigration v Kurtovic (1990) 21 FCR 193. There is also s.422B of the Act to be taken into account which makes s.424A part of a code and an exhaustive statement of the requirements of the natural justice hearing rule.”
In that case it was not necessary to decide the issue since the material which the applicant alleged should have been put to him on the basis of legitimate expectation was excluded by s.424A(3)(b).
In Re Minister for Immigration; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 (“Ex Parte Lam”) (a case which was decided before s.422B was inserted into the Act) Gleeson CJ commented at [34]:
“…it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”
On this basis, legitimate expectation may still be a useful way of characterising some procedural unfairness which falls outside the ambit of Division 5 or, at least, giving practical content to procedural obligations prescribed by the legislation. However, the applicant has not pointed to any failure of the Tribunal to comply with the procedural code set out in Division 5, nor has he shown any other basis for finding a breach of procedural fairness. Even if there was some other basis on which to find that the failure to pass on the information was a breach of procedural fairness, the applicant would still be required to show that he had suffered some detriment in reliance on the expectation. In Ex Parte Lam at [36] Gleeson CJ noted:
“The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.”
In the instant case, it is not clear that the applicant suffered any detriment in relying on the expectation. He has not said what more favourable course he might have taken had it not been for his expectation that the Tribunal would pass on the information. It may also be argued from a reading of the s.424A letter and the particulars outlined therein that the Tribunal was not inviting comment on the individual findings of the expert but rather the ultimate decision and whether it was properly made. In this sense the Tribunal’s actions could not be said to give rise to an expectation that submissions of the sort made would be passed onto the independent expert.
It remains to consider the effect of the expert’s offer to accept new information. There are clearly occasions where a Tribunal may wish to have an independent expert reconsider their opinion in light of new information. Indeed, this Tribunal did just that by requesting a second expert opinion in order for that expert to take account of Dr Michael’s medical report. Further, it is not clear whether there are circumstances which would oblige the Tribunal to pass on new information to the independent expert. However, in this case, I think it is useful to draw a distinction between new information in the sense of documentary evidence and what amounts to additional submissions. There are less compelling reasons for concluding that the applicant’s new information in the form of submissions should be passed onto the expert than there are in the case of new documentary evidence. This is particularly so when, as will be seen below, the applicant had an opportunity to make the submissions before the independent expert. As such, I do not propose to consider this issue any further.
The second issue is whether the Tribunal erred by accepting an opinion which was vitiated by an error of law. The applicant relies on the decision in Minister for Immigration v Seligman (1999) 85 FCR 115 (“Seligman”). In that case the Full Court, French, North and Merkel JJ, found that if the opinion of an expert is vitiated by error of law the delegate errs in taking it as correct:
“It is not necessary for the purposes of this case to characterise consideration of the Medical Officer's opinion as a review of that opinion. Nor is it necessary to characterise that consideration as going behind the opinion. The delegate is only entitled and obliged to take that opinion as correct if it is an opinion of a kind authorised by the regulations and, it may be added, validly so authorised. If it is not or if it travels beyond the limits of what is authorised, then to act upon it as though it is binding is to act upon a wrong view of the law and to err in the interpretation of the law or its application, a ground of review for which s 476 of the Act provides.” [66]
Their Honours added that the Court had jurisdiction to consider the lawfulness of an independent expert’s opinion as an element of its consideration of the lawfulness of the delegate’s decision [69].
In Seligman the delegate was required to take the opinion of a Medical Officer regarding whether the applicant’s medical condition was likely to result in significant cost to the Australian community to be correct for the purposes of deciding whether the applicant satisfied a criterion for the grant of a visa. The Court found that the Medical Officer had incorrectly interpreted the scope of one of the criterion and made findings for which there was no evidence so that the decision could not be said to be “authorised by the Regulations”. Similarly, in Silva v Minister for Immigration [2007] FMCA 1955, Riethmuller FM found that the opinion of an independent expert on whether the alleged victim had suffered relevant domestic violence was not authorised by the Regulations because it did not address the question of whether the alleged victim was apprehensive about his personal well being or safety, a matter which was included in the definition of “relevant domestic violence”.
The applicant does not submit that the expert in this case incorrectly interpreted the law or made findings for which there was no evidence. Rather, it is argued that the expert failed to consider the case put by the applicant. There is little doubt that had the applicant provided the information regarding his cultural background to the expert and the expert had failed to consider it this would amount to an error of law. However, that is not the case. The expert did consider the case as it was put to her by the applicant and, in the words of the respondent’s counsel, it is difficult to see how an opinion which admittedly falls within reg. 1.23(1C) can change to one that falls outside that regulation by a submission made after the opinion was formed. The applicant has not produced any further authority on this point.
Rather than press this argument, the applicant appears to be relying on the common law doctrine of procedural fairness which requires that the applicant be given a reasonable opportunity to deal with matters adverse to his interest that the decision maker proposes to take into account in exercising its power; SZEYK v Minister for Immigration [2008] FCA 1940. The applicant submits that the expert’s assessment makes it clear that the applicant’s failure to seek police intervention until after he was put out of the marital home in February 2007 was a part of the reason for her finding that he did not have a genuine experience of fear arising from the claimed domestic violence and that his failure to report the incidents of domestic violence to the police had not previously been an issue that was raised by either the primary decision-maker, the first expert, the Tribunal or the second expert, so there had been no need to address this issue until the opinion of the second expert was provided to the applicant for comment. In Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 at 591-592 the Full Court said:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
This passage was cited with approval in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592 at [29].
If it were the case that the applicant had no indication that his failure to seek police intervention was in issue, it may be an error to rely on an opinion which is based on this fact. However, I am of the view that the applicant was on notice that his failure to seek police intervention was in issue prior to the release of the second expert’s opinion. The Minister points to the form provided to both experts containing a number of questions which the experts were asked to address in their consultation with the applicant, including whether or not the applicant had obtained professional assistance such as police action and any reasons for not doing so. The Minister submits (correctly in my view) that these forms combined with the summaries of the interviews between the applicant and the first and second expert reveal that the applicant had an opportunity throughout the review process to explain his failure to seek assistance from the police. Therefore, the factual premise which underpins the applicant’s submission is not made out. As a result, it can not be said that an error of the type discussed in Seligman was made in the instant case. The Tribunal was entitled to treat the opinion as “properly made”.
Once the Tribunal has determined that the expert’s opinion was properly made it is bound to accept it and find in accordance with it. This is what the Tribunal did. There was no jurisdictional error. The application must be dismissed. The applicant must pay the respondent’s costs assessed in the sum of $5,800.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 23 June 2010
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